Stanching the Cash Flow

Chemerinsky, Erwin, Sample, James, The American Prospect

The influence of special-interest money in the corruption of state courts has been well documented. In 39 states, at least some judges are elected, and the costs of these elections are escalating dramatically. The money for such campaigns comes primarily from lawyers and litigants with matters before the courts. At the very least, this system undermines the public's perception of the integrity of courts and their rulings. More than seven in ten Americans surveyed said they believe campaign cash influences judicial decisions. Nearly half of state-court judges agreed. The pervasive perception and increasing reality of monetary influence in judicial decision-making weakens a cornerstone of American democracy.

What can we imagine by way of remedy? There are two distinct paths. In the first approach, states would accept judicial elections but mitigate monetary influence by combining rigorous recusal rules with limits on campaign expenditures. In the second scenario, states would shift from election of judges to executive appointment and merit selection. Each approach has advantages and disadvantages, both in terms of the substance and the political reality of reform. But whichever path is chosen, reform in judicial elections is imperative.

Though the Supreme Court has lately taken an expansive view of money as speech, there is reason to believe that even the Roberts Court might recognize that judicial elections are different from others and accept limits that would not be allowed in elections for the legislative and executive branches.

In the last few years, in a series of 5-4 decisions, the conservatives on the Court have declared unconstitutional several campaign-finance laws designed to prevent corruption and to ensure greater equality in the electoral process. However, none of these recent cases involved laws regulating campaign spending in judicial elections. The Court might be more accepting of the need to limit the role of money in the selection of judges. Two years ago, in Caperton v. A.T Massey Coal Company, the Court ruled that due process was violated in a high-profile West Virginia case. A state supreme court justice participated in the case after the CEO of a company in the litigation had spent $3 million to get the justice elected. In Caperton, the Court emphasized the "extreme facts," including the timing of the expenditures and the amount of the CEO's support, which totaled more than all other expenditures supporting the judicial candidate combined. In such circumstances, the Court declared, "the probability of actual bias rises to an unconstitutional level." Significantly, this was also a 5-4 decision--but with Justice Anthony Kennedy siding with the Court's moderates and liberals as the swing vote and writing the opinion for the majority. In other recent cases, Kennedy joined the Court's conservatives in striking down campaign-finance reforms directed at other branches of government.

A legislator is not disqualified from voting on a bill that benefits those who spent a great deal of money for his or her election; the legislator gets in trouble for bribery only when there is an explicit quid pro quo. But judges are different. Due process requires an impartial decision-maker, and judges are expected to decide the cases before them on the merits, rather than to please constituents or donors. Therefore, campaign-finance laws that would not be allowed for elections of legislators or executive officials might be permitted in judicial elections, even by the Roberts Court, given Justice Kennedy's views.

THREE KEY APPROACHES

to campaign-spending reforms in judicial elections are recusal rules, spending limits, and public funding. A minimal first step is for states to adopt rules, as recommended by the American Bar Association, requiring recusal of judges from cases where a party has spent more than a designated sum to elect the person to the bench.

More dramatically, the Supreme Court should uphold limits on campaign expenditures in judicial races that otherwise would not be allowed. …

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